Citation NR: 9724569
Decision Date: 07/16/97 Archive Date: 07/25/97
DOCKET NO. 90-54 259 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for defective hearing
of the right ear.
2. Entitlement to an increased rating for residuals of a
fracture of the right clavicle, currently evaluated as 10
percent disabling.
3. Entitlement to an increased (compensable) rating for
chronic lumbosacral strain, with lumbar spondylosis.
4. Entitlement to an increased (compensable) rating for a
partial tear of the posterior ligaments of the right knee.
5. Entitlement to an increased (compensable) rating for
defective hearing of the left ear.
ATTORNEY FOR THE BOARD
Mark E. Goodson, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1966 to April
1988.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from rating decisions by the RO, dated in February
and August 1990. The February 1990 decision granted the
veteran’s claim of service connection for residuals of a
fracture of his right clavicle, and evaluated the disability
as 10 percent disabling; and granted his claims of
entitlement to service connection for chronic lumbosacral
strain and a partial tear of the posterior ligaments of the
right knee, and assigned each of these disabilities a
noncompensable evaluation. The August 1990 decision granted
his claim of entitlement to service connection for defective
hearing in his left ear, and assigned the disability a
noncompensable evaluation; and denied his claims of
entitlement to service connection for residuals of a fracture
of his left elbow, defective hearing of his right ear, and
bilateral tinnitus.
This matter was previously before the Board in July 1991,
when the case was remanded to the RO for development. On
remand, the RO undertook the requested development. By a
rating decision of May 1996, the RO granted his claim of
entitlement to service connection for residuals of a fracture
of his left elbow and tinnitus, and also granted an implied
claim of entitlement to secondary service connection for
decreased sensation of the left little finger due to the left
elbow fracture. The RO assigned each of these disabilities a
10 percent evaluation. In a supplemental statement of the
case (SSOC), dated in May 1996, the RO effectively denied the
veteran’s claim of entitlement to service connection for
defective hearing in his right ear, and also denied his
claims of entitlement to increased ratings for the clavicle,
back, knee and left ear conditions. He has not filed a
notice of disagreement (NOD) with respect to the evaluations
assigned to his left elbow and tinnitus disabilities, and
therefore, there is no issue in appellate status with respect
to these disabilities. Grantham v. Brown, 96-7011 (Fed.
Cir., June 11, 1997), slip. op.
By a rating decision of June 1996, the RO continued the
evaluation of the veteran’s left little finger disability as
10 percent disabling; and denied his implied claim of
entitlement to a total disability rating, based on his
unemployability, for compensation purposes (TDIU). No NOD
has been filed with respect to these matters. However, in
May 1996, the RO wrote to the veteran and essentially told
him that the left little finger disability was a residual of
his left elbow condition, and that because service connection
had been granted for the residuals of a left elbow fracture,
his “appeal” as to “these issues” had been satisfied. Yet in
October 1996, the RO wrote to him that if he were
dissatisfied with the May 1996 decision as to his little
finger, then he had 30 days in which to indicate he was
dissatisfied, and that his failure to do so would be
construed as a “continuation” of his “appeal” as to this
matter. The Board is concerned that the RO’s letters
inadvertently misled him into believing that he did not need
to file a NOD with respect to the evaluation of his left
little finger disability (and possibly, the denial of his
TDIU claim), if he desired appellate review of these matters.
See Grantham, supra; cf. Holland v. Brown, 10 Vet.App. 42
(1997). Therefore, these matters are referred to the RO for
appropriate action. See 38 C.F.R. § 19.25 (1996).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for defective hearing in his right ear. He also
essentially contends that the noncompensable evaluation
currently assigned for defective hearing in his left ear does
not adequately reflect the severity of his disability. He
also contends that he is entitled to higher evaluations for
his other service-connected disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that his claim of entitlement to
service connection for defective hearing of the right ear is
not well-grounded.
(The veteran’s claims of entitlement to increased ratings for
residuals of a fracture of the right clavicle, chronic
lumbosacral strain, a partial tear of the posterior ligaments
of the right knee, and defective hearing of the left ear are
subject to the REMAND portion of this decision.)
FINDING OF FACT
No competent medical evidence has been submitted to show that
the veteran has a legally cognizable hearing disability in
his right ear.
CONCLUSION OF LAW
The veteran’s claim of entitlement to service connection for
defective hearing of the right ear is not well-grounded.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.385 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual background
The veteran served on active duty from April 1966 to April
1988. His service medical records reflect that on the
entrance examination, conducted in April 1966, his ears were
found to be normal. Audiometric examination revealed that he
had puretone thresholds of 25, 25, 15, 10 and 15 decibels in
his right ear and 15, 5, 10, 10 and 10 decibels in his left
ear at 500, 1000, 2000, 3000 and 4000 hertz, respectively.
However, the summary of defects states “hearing loss,”
without further explanation. At some point later in time,
someone struck through the audiometric results on a duplicate
copy of the examination. Audiometric examinations, conducted
in 1972, 1975, and 1978 revealed that he had no puretone
threshold above 10 decibels in his right ear. Audiometric
examinations, conducted in 1978 and 1979, revealed that he
had no more than two puretone thresholds of 26 decibels or
more, and no puretone threshold of 35 decibels or more.
Audiometric examination, conducted in April 1980, revealed
that he had puretone thresholds of 25, 10, 20, 10 and 20
decibels in his right ear at 500, 1000, 2000, 3000 and 4000
hertz, respectively. In February 1983 he presented for a
physical examination, complaining of decreased auditory
acuity, which was noted to be subjective. The examiner noted
“rpt audiogram after noise free” for 72 hours. His service
medical records do not included any report of audiometric
studies, dated in or about February 1983, and a June 1985
treatment record indicated that some of his service medical
records may have been lost in April 1985. The separation
medical examination, conducted in February 1988, reflects his
ears were normal. Audiometric examination revealed that he
had puretone thresholds of 10, 10, 15, 15 and 35 decibels in
his right ear and 20, 15, 15, 40 and 40 decibels in his left
ear at 500, 1000, 2000, 3000 and 4000 hertz, respectively.
No speech recognition scores appear in the service medical
records.
In February 1989, the veteran underwent a VA examination in
Saudi Arabia. Audiometric examination revealed that he had
puretone thresholds of 25, 25, 20, 30 and 35 decibels in his
right ear at 500, 1000, 2000, 3000 and 4000 hertz,
respectively. Bone conduction thresholds were 55, 55, 45,
and 50 decibels in his right ear at 500, 1000, 2000, and 3000
hertz, respectively, with a notation that there was no
response in the right ear at 4000 hertz. The examiner noted
that, because bone conduction thresholds cannot exceed air
conduction thresholds, especially not by as much as 20 to 30
decibels, as in the veteran’s case, the thresholds should be
rechecked. No speech recognition scores were given. The
examiner also noted that “further sophisticated examinations”
of hearing loss were required because these “ordinary” tests
were “not sufficient.” The examiner did not specify what
further examination was needed, or why, or explain why the VA
tests were not sufficient. The diagnosis was bilateral
hearing loss.
In April and May 1990, the veteran underwent VA audiometric
examination, which revealed puretone thresholds of 5, 10, 15,
20, and 30 decibels in his right ear at 500, 1000, 2000, 3000
and 4000 hertz, respectively. The speech recognition score
was 98 percent in the right ear. The diagnosis was bilateral
high frequency sensorineural hearing loss, mild to moderate
in the right ear, with a recommendation of retesting if his
hearing became worse. In May 1990, the chief of the VA
Audiology and Speech Pathology Clinic certified the speech
recognition score and the audiometric results at 1000 through
4000 hertz, and remarked that hearing was within normal
limits in the right ear.
Audiometric examination, conducted in April 1994, revealed
that the veteran had puretone thresholds of 10, 10, 10, 15
and 30 decibels in the right ear and 5, 5, 15, 40 and 50
decibels in the left ear at 500, 1000, 2000, 3000 and 4000
hertz, respectively. Speech recognition scores were 96
percent, bilaterally. Auditory Brain (evoked) Responses
(ABR) testing, to rule out retrocochlear lesions, revealed no
asymmetry between the left and right ears. The diagnosis was
sloping left high frequency sensorineural hearing loss, with
ABR within normal limits. The chief of the VA Audiology and
Speech Pathology Clinic certified the speech recognition
scores and the audiometric results at 1000 through 4000
hertz, and remarked that hearing was within normal limits in
the right ear, and that the left ear had mild sensorineural
hearing loss.
Also during April 1994, the veteran underwent VA examination
with respect to his service-connected residuals of the
fracture of his right clavicle, the tear of his right knee,
and the lumbosacral strain. The report does not reflect the
availability or review of the veteran’s claims file. On
examination, the examiner noted that there was no nonunion
with respect to the clavicle, but did not comment on possible
malunion. The clavicle was tender to palpation at the
fracture site, but it was not stated whether the source of
the pain was orthopedic, muscular, or neurological. There
was marked tenderness under the patella at the patellar
grind, but there was no comment as to whether this was
related to the service-connected ligament tear, and if so,
how this affected his functional ability. Complete range of
motion studies were not conducted with respect to his lower
back. Range of motion studies were conducted with respect to
the shoulder, but the results are not expressed in degrees,
nor are the normal ranges of motion given. There is no
comment regarding impairment of functional ability with
respect to any of his service-connected disabilities.
II. Analysis
With respect to the veteran’s claim of entitlement to service
connection for defective hearing in the right ear, the
threshold question to be answered is whether he has presented
a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded
claim is defined as a "plausible claim, one which is
meritorious on its own or capable of substantiation."
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Section 5107
provides that the claimant's submission of a well-grounded
claim gives rise to VA's duty to assist and to adjudicate the
claim. In short, VA is not required to adjudicate the merits
of a claim until after the veteran has met this initial
burden of submitting a well-grounded one. Boeck v. Brown, 6
Vet.App. 14 (1993).
"Although the claim need not be conclusive, the statute
[§ 5107] provides that [the claim] must be accompanied by
evidence" in order to be considered well-grounded. Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). In the context of a
claim of entitlement to service connection, this generally
means that evidence must be presented which in some fashion
links a current disability to a period of military service or
to an already service-connected disability. 38 U.S.C.A.
§§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1996);
Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Evidence
submitted in support of the claim is presumed to be true for
purposes of determining whether the claim is well-grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). However, lay
assertions of medical diagnosis or causation do not
constitute competent evidence sufficient to render a claim
well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
In the present case, the veteran maintains that he should be
granted service connection for defective hearing in the right
ear. However, he has proffered no competent medical evidence
to substantiate his assertion that he currently has a
cognizable hearing disability in his right ear. VA
regulations provide that impaired hearing will be considered
a “disability” only when the auditory threshold is 40
decibels or greater at 500, 1000, 2000, 3000, or 4000 hertz,
where it is 26 decibels or greater in at least three of these
frequencies, or where speech recognition scores under the
Maryland CNC test are less than 94 percent. 38 C.F.R.
§ 3.385 (1996). The evidence of record in this case does not
demonstrate that the hearing in his right ear meets any of
these criteria. For his claim of service connection to be
deemed plausible, there must be competent medical evidence
that he currently has the disability for which service
connection is claimed. See Degmetich v. Brown, 104 F.3d 1328
(Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet.App. 223
(1992).
Thus, even accepting as true the veteran's account of events,
see King v. Brown, 5 Vet.App. 19 (1993), the Board
nevertheless finds that evidence sufficient to make his claim
well-grounded has not been submitted. While he is certainly
competent to provide testimony regarding the occurrence of
events in service, such as being exposed to noise, see
Grottveit v. Brown, 5 Vet.App. 91 (1993), there is no
indication in the record that he has the medical expertise
necessary to proffer the conclusion that he currently has a
legally cognizable hearing disability. Id.
The veteran’s allegations concerning the diagnosis of his
current difficulties, without corroborative medical evidence,
are of little probative value. See Brammer v. Derwinski, 3
Vet.App. 223, 225 (1992); Hyder v. Derwinski, 1 Vet.App. 221,
225 (1991). None of the evidence submitted shows that he has
a legally cognizable hearing disability. Absent presentation
of competent evidence establishing the existence of such
disability, his claim may not be considered well-grounded.
See Brammer v. Derwinski, 3 Vet.App. 223 (1992). VA
therefore has no duty to further assist him in developing
this claim under 38 C.F.R. § 3.159 (1996).
The Board notes that the June 1985 notation in the veteran’s
service medical records indicates that some of his service
medical records have been lost. However, where service
medical records are presumed to be lost or destroyed, the
Board does not have a heightened duty to assist; instead, it
has a heightened obligation to explain its findings and
conclusion. O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).
O’Hare, supra, does not lower the legal standard for proving
a service connection claim. Rather, it increases the Board’s
duty to consider the evidence. Here, the Board has carefully
considered all of the evidence of record, but finds no basis
for granting his claim of entitlement to service connection
for defective hearing in the right ear. Moreover, the
possible absence of such records does not relieve him of his
burden of producing a well-grounded claim, and he has not, in
any event, produced evidence of a current disability which
would render his claim well-grounded. 38 U.S.C.A. § 5107 (a)
(West 1991); O’Hare, supra.
The Board also notes that although the February 1990 VA
medical examiner indicated that more sophisticated testing
was necessary to properly evaluate the veteran’s hearing
disability, the examiner did not indicate what this testing
was. See Raymond v. Brown, 5 Vet.App. 335 (1991) (addressing
duty to assist in claim of service connection, where VA had
offered applicant a medical examination regarding the claimed
disability), citing, inter alia, Hyder v. Derwinski, 1
Vet.App. 221 (1991) and Green v. Derwinski, 1 Vet.App. 121,
123-124 (1991). In any event, VA provided him with more
sophisticated testing of his hearing, in the form of the ABR
testing conducted in April 1994, and still found no right ear
hearing disability. Nor have repeated audiometric
examinations since February 1990 revealed a right ear hearing
disability. Thus, VA has not failed its duty to assist the
veteran.
When evidence has not been submitted sufficient to make a
claim well-grounded, the Board does not have jurisdiction to
address the merits of the claim. Boeck v. Brown, 6 Vet.App.
14 (1993). Therefore, this appeal must be denied.
ORDER
The veteran’s claim of entitlement to service connection for
defective hearing in his right ear is not well-grounded; the
appeal of this issue is therefore denied.
REMAND
The veteran’s claims of entitlement to increased ratings for
residuals of a fracture of the right clavicle, chronic
lumbosacral strain, a partial tear of the posterior ligaments
of the right knee, and defective hearing of the left ear are
well-grounded, in that they are not inherently implausible.
38 U.S.C.A. § 5107(a) (West 1991). Consequently, VA has a
duty to assist him in the development of his claims.
38 C.F.R. § 3.159 (1996); Proscelle v. Derwinski, 2 Vet.App.
629 (1992); Littke v. Derwinski, 1 Vet.App. 90 (1990). This
duty includes providing a medical examination that is not too
old to adequately evaluate his current condition. Gregory v.
Brown, 8 Vet.App. 563 (1996) Weggenmann v. Brown, 5
Vet.App. 281 (1993). As to each disability for which he
seeks an increased rating, the most recent VA examination was
conducted in April 1994. This date is too remote in time to
provide an adequate evaluation of his service-connected
disabilities, and thus, a REMAND is warranted for additional
examinations. 38 C.F.R. § 19.9 (1996).
Also, a medical examination must consider records of prior
examination and treatment in order to assure a fully informed
examination. 38 C.F.R. § 4.2 (1996); Caffrey v. Brown, 6
Vet.App. 377 (1994), Green v. Derwinski, 1 Vet.App. 121, 123-
124 (1991). The Board’s July 1991 remand requested that the
claims file be made available to the examiners for this
purpose. However, although the RO apparently forwarded the
file to the medical examiners’ office, the examination
reports do not reflect that the file was available, much less
the examiners reviewed the file. Therefore, on REMAND, the
examiners’ reports should reflect such a review.
Furthermore, the United States Court of Veterans Appeals
(Court) has stressed that, in evaluating diseases of the
joints, VA has a duty to determine whether the joint in
question exhibits weakened movement, excess fatigability, or
incoordination, and whether pain could significantly limit
functional ability during flare-ups or when the joint is used
repeatedly over a period of time. See DeLuca v. Brown, 8
Vet.App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1996). The
Court has indicated that these determinations should be made
by an examiner and should be portrayed by the examiner in
terms of the additional loss in range of motion due to these
factors (i.e., in addition to any actual loss in range of
motion noted upon clinical evaluation).
The medical evidence currently of record leaves unanswered
significant questions as to the level of disability of the
lumbosacral strain and right knee. For example, it does not
address the strength, coordination, and endurance of these
joints, or the extent of functional loss due to pain or
decreased strength. 38 C.F.R. § 4.40 (1996). In terms of
38 C.F.R. § 4.45, it also does not address excess
fatigability, incoordination, impaired ability to execute
skilled movements smoothly, pain on functional movement,
swelling, instability of station, and disturbance of
locomotion, nor does it discuss the extent of functional
impairment due to flare-ups or problems when these joints are
used repeatedly over time. DeLuca, supra, at 206. In
contrast to the April 1994 examination, the February 1990 VA
examination revealed instability in the lumbosacral area.
Although the latest rating decision by the RO addressed these
factors, DeLuca makes clear that the VA examiner, not just
the adjudicators, must address these questions. See DeLuca,
8 Vet.App. at 206-207, supra. Therefore, the matter must be
remanded for a new VA examination and readjudication.
38 C.F.R. 19.9 (1996).
As to the residuals of the clavicle fracture, no statement of
the case or supplemental statement of the case has been
issued regarding 38 C.F.R. § 4.71a, Diagnostic Code 5203
(1996), which is the rating criteria used by the RO to
evaluate the residuals of the fractured clavicle. 38 C.F.R.
§§ 3.103, 19.28, 19.29 (1996). Thus, a remand is further
warranted on this basis. 38 C.F.R. § 19.9 (1996).
Also, it is unclear whether all residuals of the clavicle
fracture have been diagnosed, and whether the residuals
affect the shoulder joint and associated muscle groups.
Specifically, (a) service medical records reflect that the
clavicle was shortened as a result of the fracture; (b) the
April 1994 radiological report noted overriding of the
fracture fragments; and (c) the February 1990 VA examination
detected a malunited fracture of the clavicle, yet the April
1994 VA examination did not mention these findings. The
diagnosis of the residuals of the fracture of his right
clavicle must be clarified on remand. Colvin v. Derwinski, 1
Vet.App. 171 (1991). The examiners must determine whether
his right shoulder joint or muscles are involved. If so,
then a DeLuca analysis is necessary with respect to the
shoulder. Moreover, if the muscles are involved, then both
the examiners and the adjudicators should take note of new
regulations pertaining to muscular injuries of the shoulder.
62 Fed.Reg. 106, (June 3, 1997); Karnas v. Derwinski, 1
Vet.App. 308 (1991). These regulations provide that,
effective July 3, 1997, sections 4.56 and 4.73 of Title
38 C.F.R. have been revised, and that sections 4.47 -- 4.54,
4.69 and 4.72 of Title 38 C.F.R. were removed and reserved.
Id., pp. 30237-39. The revised regulations provide new
criteria for evaluating the severity of muscular injuries,
including shoulder muscle injuries evaluated under 38 C.F.R.
§ 4.73, Diagnostic Codes 5301-5304, 5323 (1996).
For the reasons stated, the case is REMANDED to the RO for
the following action:
1. The RO should request the veteran to
provide the RO with information
regarding any evidence of current or
past treatment for the residuals of the
fracture of his right clavicle,
lumbosacral strain and lumbar
spondylosis, right knee ligament tear,
and left ear hearing loss, that has not
already been made part of the record,
and should assist him in obtaining such
evidence following the procedures set
forth in 38 C.F.R. § 3.159 (1996). All
material obtained should be associated
with the claims file.
2. After the foregoing development, the
veteran should be examined by an
orthopedist and neurologist to evaluate
the nature current severity of the
residuals of the fracture of his right
clavicle, the partial tear of the
posterior ligaments of his right knee,
and chronic lumbosacral strain with
lumbar spondylosis. The claims folder
and a copy of this remand should be made
available to, and reviewed by, the
examiners, before during and after the
examination. The examiners’ report
should reflect a review of the claims
file. As to the clavicle, the examiners
should provide a full diagnosis of all
disease entities and disorders
attributable to the fracture of his
right clavicle. The examiners should
state whether there is any malunion of
the clavicle, and consider the
functional impairment of contiguous
joints. Range of motion studies and any
other indicated testing should be
accomplished. They should also
specifically state whether any muscle
groups are affected. If the muscles are
involved as a residual of the clavicle
fracture, then the examiners should
identify which of muscle groups are
affected, using the diagnostic criteria
in 38 C.F.R. § Part IV; see, e.g.,
38 C.F.R. § 4.73(a), Diagnostic Codes
5301-5304, 5323 (1996), and evaluate his
shoulder disability under both the new
version of these regulations, found at
62 Fed.Reg. 106, pp. 30235-30240 (June
3, 1997), and the regulations in effect
prior to that time. If the shoulder
joint or muscle is affected, then the
examiners must provide and analysis of
functional impairment outside of the
clinical setting under DeLuca, supra,
stating the extent to which the veteran
experiences weakness, excess
fatigability, incoordination, and pain
due to repeated use or flare-ups, and
should portray these factors in terms of
the additional loss in range of motion
due to these factors, stating criteria.
As to the lower back, the examiners
should X-ray the veteran’s low back,
state his range of motion in terms of
forward flexion, backward extension,
lateral flexion, and lateral rotation,
in terms of degrees, and should note any
objective evidence of pain on motion
(and the degree of movement at which any
such discomfort begins). The examiners
should indicate whether the veteran has
muscle spasm on extreme forward bending,
whether there is any listing of the
spine, a positive Goldthwait’s sign,
loss of lateral motion with
osteoarthritis changes or narrowing of
joint spaces, or whether there is any
abnormal mobility on forced motion. The
examiners should specifically indicate
whether the veteran has intervertebral
disc syndrome. If so, the examiners
should indicate whether the syndrome is
mild, moderate, severe, or pronounced in
degree, should indicate the frequency of
attacks, and should note whether the
condition is manifested by persistent
symptoms compatible with sciatic
neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle
jerk, or other neurological findings
appropriate to the site of the diseased
disc(s). Finally, the examiners should
render an opinion as to the extent to
which the veteran experiences weakness,
excess fatigability, incoordination, and
pain due to repeated use or flare-ups,
and should portray these factors in
terms of the additional loss in range of
motion due to these factors. As to the
right knee, complete range of motion
studies should be conducted. The
examiners should state whether the knee
is ankylosed, and if so, whether this is
extremely unfavorable, in flexion
between 20 degrees and 45 degrees, or in
flexion at 10 degrees and 20 degrees,
and if not, whether there is a favorable
angle in full extension, or in slight
flexion between 0 degrees and 10
degrees. They should state whether
there is recurrent subluxation or
lateral instability, and characterize
this as severe, moderate, or slight.
The should state whether the semilunar
cartilage is dislocated, and whether
there are frequent episodes of locking,
pain or effusion into the joint.
Finally, the examiners should render an
opinion as to the extent to which the
veteran experiences weakness, excess
fatigability, incoordination, and pain
due to repeated use or flare-ups, and
should portray these factors in terms of
the additional loss in range of motion
due to these factors. Thereafter, the
examiners should determine the severity
of the residuals of the fracture of his
clavicle, the lumbosacral strain and
spondylosis, and right knee patellar
tear. Specifically, for each
disability, they should render an
opinion as to whether the disability,
including any noted tenderness, pain,
weakness, excess fatigability, or
incoordination, results in an overall
disability picture which is best equated
with (1) slight, (2) moderate, or (3)
severe limitation of motion of the
affected joint. In this regard, the
examiners should expressly address the
veteran’s reports of pain on use and
flare ups.
3. The RO should have the veteran
examined by an audiologist for the
purpose of conducting an audiometric
examination. The results of the
examination should be certified by the
Chief of the Audiology Clinic.
4. After the above development, the RO
should take adjudicatory action on the
veteran’s claims of entitlement to
increased ratings for residuals of the
fracture of his right clavicle, right
knee disability, lumbosacral strain, and
defective hearing of the left ear. If
the examiners have found that the
residuals of the fracture of his
clavicle involve the musculature, then
the RO should evaluate the residuals
under both the old and new diagnostic
criteria contained in 38 C.F.R. §§ 4.55
and 4.73 (1996), and assign his
disability the more favorable of the two
evaluations. Although 38 C.F.R. § 4.47
-- 4.54, 4.69, and 4.72 were removed and
reserved effective July 3, 1997, when
conducting its comparative analysis, the
RO should consider the factors in these
regulations when applying the old
regulations to the veteran’s claim, but
not when applying the new regulations.
For the knee and lumbosacral strain
claims, and for the clavicle claim if
musculoskeletal disabilities are
involved, the adjudication should
reflect an analysis of all DeLuca
factors. Reasons for evaluating any
muscle disability under a particular
Muscle Group should be set forth. If
any benefit sought is denied, a
supplemental statement of the case
should be issued, to include a statement
of 38 C.F.R. § 4.71(a), Diagnostic Code
5203 (1996).
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder shall be returned to this Board for
further appellate review. No action is required by him until
he receives further notice. The purposes of this remand are
to procure clarifying data and to comply with the governing
adjudicative procedures. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition of
this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RIPLEY P. SCHOENBERGER
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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